December 12, 1973
Page 41049
Mr. MUSKIE. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The second assistant legislative clerk read as follows:
On page 2 strike lines 13 through 16–
Mr. MUSKIE. Mr. President, this is an amendment which I discussed–
The PRESIDING OFFICER. The Senate will be in order. The Senator from Maine has the floor.
Mr. MUSKIE. This is an amendment which I have discussed with the distinguished Senator from Wyoming (Mr. MCGEE). It has to do with language which is present on page 2 of the bill, lines 13 through 16. I understand that Senator MCGEE will be on the floor shortly. The language reads as follows:
No part of any funds appropriated under this Act may be used by the Environmental Protection Agency to administer any program to tax, limit, or otherwise regulate parking facilities.
Mr. President, I oppose this language for several reasons. First of all, it is legislation on an appropriation bill, which is not reachable on the Senate floor by a point of order, as I understand from the Parliamentarian, because it is language that was put in the bill by the House of Representatives.
Second, as to its merits, this language raises a number of issues in connection with the Clean Air Act of 1970 – some of them controversial – which are going to be tackled in the course of the regular legislative process, and ought not to be resolved by such indirect and peripheral means.
What is involved in this language, Mr. President, is the whole question of how we regulate traffic in our central cities to minimize the air pollution impact upon life in those cities. What this amendment would do would be to take out of the hands of people the effective power needed to control that traffic.
Mr. President, when the Clean Air Act was adopted, language was included in the committee report which indicated our understanding of the degree to which our ability to move around in the cities would be affected by the health objective of the Clean Air Act. Let me read from that report:
If the Nation is to continue to depend on individual use motor vehicles, such vehicles must meet high standards. The bill recognizes that a generation, or 10 years' production, of motor vehicles will be required to meet the proposed standards. During that time, as much as 75 percent of the traffic may have to be restricted in certain large metropolitan areas if health standards are to be achieved within the time required by this bill.
So, Mr. President, we fully understood in 1970 that if we were to meet the health standards of the act, something would have to be done to lessen traffic.
Some of the means were provided by the Clean Air Act. We established standards for new cars to meet. If those standards had been met, if they could have been met, the controls necessary by other means would have been minimized. But already the Administrator of EPA has granted the extensions which he has the power under the act to grant. There is pressure here in Congress, in both bodies, to further relax those standards on new cars.
If those efforts succeed, then what will be required is even more stringent controls upon the use of automobiles that are already in the hands of consumers.
We simply cannot have it both ways. So the pressure will be on mayors and city councils, as well as EPA, to find other ways to restrict the use of the automobile in central cities.
I do not intend to belabor the issue; I was simply using some time until the distinguished Senator from Wyoming could reach the floor. I ask unanimous consent to have printed in the RECORD, Mr. President, further legislative history to illuminate the point which I have been making.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
PARKING RESTRICTIONS AND THE CLEAN AIR ACT
The Committee on Public Works has been reviewing the activities of EPA regarding transportation control plans, parking restrictions, and related activities for quite some time. While these tools for achieving clean air require continual refinement, it would be premature to take action at this time that would totally block the use of these strategies.
To improve air quality and conserve energy, it is necessary to achieve large increases in the use of transit and carpools in cities and corresponding decreases in the use of low occupancy automobiles.
If Congress enacts a prohibition on the use of EPA funds for any charges, limitations, reviews or controls of any kind on parking, the transportation control plans currently projected for metropolitan areas around the country will be largely negated and the achievement of air quality standards will be drastically set back. Experience to date in U.S. cities indicates that when mass transit has the ability to compete with the auto in terms of quality and cost, substantial numbers of travelers switch from the auto to mass transit.
Plans for 23 of the 31 metropolitan areas requiring transportation controls now include parking restrictions of some type. Over half of the plans include parking controls suggested by local authorities, not EPA.
If the parking measures are not implemented, the expected shifts to carpools and mass transit will not materialize. Furthermore, the incentive for the planned transit improvements would be diminished since transit companies would no longer have any assurance of increased ridership which they need to justify new buses and equipment. Planned reductions in gasoline consumption and improvements in air quality therefore would not take place.
As a result, the ability of at least 15 major cities ever to achieve the air quality levels needed to protect public health would be severely impaired.
EPA is showing increased sensitivity to the need to be reasonable in using parking restrictions as a strategy for achieving clean air.
EPA yesterday promulgated regulations delaying for one year the California parking surcharge.
The agency is now considering exempting parking lots under 250 spaces from their review. The present cutoff is 50.
EPA regulations were issued Nov. 12 controlling parking in California. They applied to projects all the way back to Aug. 15. EPA is very close to a decision to rescind this retroactivity.
There are indications that EPA will consider the amount of money spent on a new parking facility in determining whether or not to apply their review for cases that fall into a grey area as to when the project actually began.
(Environmental Protection Agency [40 CFR Part 52 ] )
CALIFORNIA TRANSPORTATION CONTROL PLAN – APPROVAL AND PROMULGATION OF STATE IMPLEMENTATION PLANS
This notice of proposed rulemaking is issued for reconsideration and amendment of five regulations contained in the California transportation control plan promulgated by EPA on November 12, 1973, 38 FR 31232. These regulations, 40 CFR 52.247 through 52.251, would establish a comprehensive program to reduce automobile traffic in the three most heavily polluted California Air Quality Control Regions through the control of practically all existing and future parking spaces. Two of them would apply in all five Regions covered by the plan. The basic means of regulation would be surcharges imposed on all free and commercial parking spaces by the relevant local government, and on noncarpool employee parking by the relevant employer. In addition, a permit would be required to construct any new parking facility over 50 spaces. All surcharges would be collected either by the relevant local government or the relevant employer. All net revenues over and above the cost of collection would be spent on improving mass transit.
This notice of proposed rulemaking announces deferral of all steps in the implementation of the surcharge regulations – 40 CFR 52.248, 52.249, and 52.250 – for a period of six months or until they can be reconsidered and amended in an orderly manner, whichever period is longer. In addition, a deferral of one year in the date for imposing any surcharge, however modified, on free and commercial parking spaces will be promulgated.
Public reaction to these particular measures since the plan was announced has been intense. The surcharges in particular have been widely criticized as arbitrary, illegal, administratively burdensome, and economically disastrous. A great many petitions for judicial review of the EPA promulgation have been filed.
In the preamble to EPA's November 12 promulgation, the Administrator recognized that "many aspects of the surcharge and employer incentive regulations are new and indeed unprecedented," and promised to revise them if revision were appropriate in the light of comments received. 38 FR 31237. This notice of proposed rulemaking is being issued to assist that public comment process.
This notice is divided into three parts. The first, which is designed to help EPA obtain the necessary information for comprehensive modifications to the regulations, gives background and asks specific questions. The second part contains more specific proposals for comments, based on the regulations as they now stand. The third describes corrective, technical, or clarifying amendments which EPA will make shortly to the regulations. Persons affected may proceed as if these had already been made.
The latter two categories of proposals are designed to focus attention on the problems of detail that must be considered in developing any revised transportation control plan for California. Comprehensive changes made in the regulations as they now stand may well render many of the proposals in these categories moot.
BACKGROUND AND SPECIFIC QUESTIONS
To assist public comment on the regulations covered by this Notice, and to assist EPA in making revisions that may well be substantial, an explanation of the reasons behind their promulgation, and a list of questions concerning them are set out below.
In promulgating these regulations, EPA was guided by the following considerations:
1. The Clean Air Act requires all measures that are "reasonably available" to be put into effect to achieve air quality standards before 1977. "Transportation controls" are specifically mentioned in both the Act and its legislative history. Though a measure that would lead to major economic or social dislocation cannot be considered "reasonably available," the intent of the Clean Air Act is unmistakably to require significant changes in habits and travel patterns as a means of achieving the standards.
2. California has the country's worst automobile-caused air pollution problem. The peak readings of photochemical oxidants in Los Angeles, San Diego, and San Francisco are all higher than have been recorded anywhere else in the country; the reading for Los Angeles is almost twice as high. In addition, the problem in California is caused almost exclusively by automobiles.
3. Studies have repeatedly indicated that shifts away from single-passenger automobiles and towards carpools and mass transit are unlikely to occur without both significant disincentives to the use of the former and significant incentives to the use of the latter.
Particularly in regions of spread-out development the only two methods that appear to be capable of obtaining a significant VMT reduction are (i) comprehensive restrictions on the sale of gasoline and (ii) comprehensive restrictions on parking. The first alternative was proposed for comment in many Regions, including the five California regions, and rejected because the Administrator found that "The possibilities of evasion, the likelihood of noncompliance, and the difficulty of enforcement are too great to make this measure practicable." 38 FR 30632 (November 6, 1973). Accordingly, the California plan was promulgated containing the second strategy.
The Clean Air Act places the responsibility for developing implementation plans on the State governments in the first instance. If the State of California, or local governments such as cities, come up with measures that would achieve significant VMT reduction, their measures will be accepted and this plan or any future EPA plan will be withdrawn to the extent warranted.
4. In all the hearings EPA has held on transportation control plans. a recurring theme has been that VMT reductions will only be acceptable if mass transit is improved at the same time.
If the present energy crisis leads to drastic restrictions on gasoline supply, the California transportation control plan will actually help alleviate the crisis by providing mass transit funds, express bus lanes, computerized carpool systems and so forth.
Particularly in California, if the transportation control plans are to produce anything like the degree of VMT reduction that Congress contemplated might be necessary, mass transit must be significantly expanded. A phased system of surcharges on automobile use is a uniquely effective regulatory instrument for accomplishing both these goals. The same surcharge that discourages automobile use in a gradual and flexible way by making it more expensive can also raise the revenue to expand mass transit to accommodate the displaced travel demand. Once mass transit has been expanded, a further VMT reduction by increasing the surcharge will be possible, and this in turn will provide revenue to increase mass transit still more. Under the EPA plan, the surcharge revenues could be used for capital expansion, operating subsidies, or any other approvable transit-related purpose.
5. Employers who provide parking spaces for their employees, particularly those who provide free parking spaces, encourage the use of single-passenger automobiles by commuters as against the use of less-polluting forms of transportation. Such employers may therefore be made responsible for the pollution their own actions have induced, and may be regulated as "indirect sources" of air pollution as that term is defined in the General Preamble. Such employers are also the persons best equipped to encourage shifts in the pattern of commuter travel, since for them the data and the administrative machinery necessary to an effective program to regulate such travel are to a considerable extent already in existence. Though additional expense to employers might result, that expense is expected to fall well within the range of expenses that pollution abatement requirements will impose on such industries as, for example, electric power generation and the manufacture of new automobiles.
In the course of this rule making, EPA will wish to have factors which may have been overlooked or undervalued brought to its attention. Detailed public comment is of the greatest importance to the development of revised, workable, and publicly acceptable transportation control measures. Comment is particularly invited on the following points:
1. Is a comprehensive system of surcharges on free and commercial parking an acceptable means of obtaining significant VMT reduction? Is there another preferable system? Specifically, are any of the following preferable: (i) Cutbacks on gasoline supply; (ii) surcharges on gasoline sales; (iii) directly requiring reductions in the number of parking spaces; (iv) far more widespread or more rapid conversion of streets to the exclusive use of busses and carpools?
2. Are the surcharge rates in the regulations as they stand too high? Would they impose intolerable competitive or financial burdens on a significant number of businesses, even though all businesses that maintain their own parking facilities would be equally burdened? Would certain categories of noncommercial activities be intolerably burdened? What degree of VMT reduction would result from implementing the present surcharge schedules? Would this be more than is economically or socially tolerable?
3. Would the revenues generated by implementing the surcharge on the schedule promulgated be more than can usefully be spent on mass transit in the three regions affected? For the first few years, would this be the case? In each of the three regions affected, what are the total, long-term, funding requirements for the kind of mass transit system capable of eventually absorbing a 20 percent VMT reduction? Of absorbing a 40 percent VMT reduction?
4. If there is to be a system of parking surcharges, and if it is to be phased in, is the current approach of phasing it into the large cities first the best approach? Specifically, would it be preferable to phase it in (i) throughout the regions in question, but at a reduced level? If so, what levels should be chosen? (ii) In areas "adequately served by mass transit"? In areas "potentially adequately served by mass transit"? If one of these last two approaches were adopted, how would these areas be determined? Given the current inadequacy of mass transit in these regions, what assurance would there be that such a surcharge would have a significant impact on VMT in its first years? If it would not, how could it be phased so as to provide assurance that after a few years it would have a significant impact? (iii) In areas to be designated by the affected localities? If this were done, what guidelines could be established to make sure each of these localities would designate more than a minimum area? Should they, for example, be required to designate a certain minimum percentage of the parking spaces within their boundaries for surcharge?
5. The regulation surcharging free parking spaces on an annual basis was adopted to avoid the potentially severe administrative burdens that could result from compelling all free parking spaces to switch to commercial operation. If such a switch was required, would the administrative burdens in fact be severe? Would they be justified by the increased VMT reduction that could be expected to result from surcharging the motorist directly, rather than only surcharging those who provide the parking spaces? If, even so, the administrative burdens would be too severe, could they be reduced to an acceptable level by exempting certain categories of spaces from surcharge entirely (for example, on-street parking) ? If one or more such exemptions were established, what alternate form of regulations of the exempted spaces should be adopted to avoid inequitable treatment of the spaces still subject to surcharge? To ensure that the surcharges remaining would in fact lead to a VMT reduction, and not simply to a switch of parking to unregulated spaces?
6. Based on all the factors outlined above, precisely how should the surcharge provisions be revised? If they are to be abandoned, precisely what form of regulation should be substituted for them?
7. Should a system of surcharges on employee parking be retained? Is it administratively practicable? If it is not, how can it be modified to be made administratively practicable? In general, is the use of fees on employee parking to reduce VMT a good idea? Is the schedule of fees contained in § 52.250 as it now stands too steep? If undue expense might result in some cases, how could that be mitigated? If the surcharge levels are to be relaxed, should the relaxation (a) reduce the maximum surcharge level (b) allow more smaller employers from some or all of the time for its implementation (c) exempt requirements imposed on larger ones?
8. Is a requirement that employee use of mass transit be subsidized administratively practicable? If not, how can it be amended so as to become practicable? Would such a subsidy program be too expensive either (a) in itself, or (b) if financed in part out of revenues from surcharges on employee parking? How does any expense of such a program compare with the expense of maintaining employee parking facilities? With other pollution abatement expenses imposed on industry?
9. What other measures by employers should be suggested or required? Should greater emphasis be placed on measures of the employer's own choosing? If a greater degree of freedom were allowed, what enforceable assurance would there be that employers subject to this regulation would do their part in meeting the requirements of the Clean Air Act?
10. Should all residential parking spaces be exempted from review under § 52.251? Alternatively, should all such spaces be reviewed? If they are to be reviewed, should review be under a different standard?
11. Is the 50-space cut-off for review under § 52.251 too low? If it is, what should the minimum cut-off number be? Whatever minimum cut-off number is established, should lots under that number be reviewed under a less stringent test? If so, what should the test be? Should such smaller lots be reviewed at the option of the Administrator in certain areas or circumstances? If so, how should those areas or circumstances be determined?
SPECIFIC PROPOSED AMENDMENTS
EPA currently intends to modify the California transportation control plan as set forth in the succeeding paragraphs. Public comment on these proposals is invited. The change proposed in paragraphs 2 and 3 of this section may be promulgated at any time after January 10, 1974.
1. "Residential parking spaces" were exempted from surcharge to avoid surcharging the parking spaces where motor vehicles are stored when they are not in use. In conformity with this logic, it is proposed to include in this exemption the spaces where fleet vehicles owned by businesses, governments, car rental agencies, and the like are parked when not in use.
2. The current EPA regulation for review of new parking spaces requires that all lots over 50 spaces receive a permit. EPA proposes to amend this requirement to limit the permit requirement to lots of 250 or more, except to the extent that the Administrator may determine that lots between 50 and 250 spaces in a certain area to be designated by him are having a significant adverse impact on the regional transportation control strategy.
3. Section 52.251 requires review of any "parking facility" which has more than 50 spaces. The most natural reading of this language is that if more than 50 spaces are located in one place, for example, an apartment house parking lot, review is required, while if they are scattered in small groups throughout an area, as they would be in a subdivision, review is not required. To eliminate this inconsistency, EPA currently intends to eliminate all residential parking facilities from review and such an amendment is proposed.
4. Section 52.250 in its present form would require even an employer with many times more employees than parking spaces to pay the mass transit fees of all its employees whenever it maintained more than the minimum number of parking spaces. Since this particular class of employers will, almost by definition, be doing more than most others to discourage single-car commuting, such a result is unjust, and was not intended. One way of avoiding it would be to provide that mass transit subsidies could not exceed the revenues collected from parking surcharges, or could not exceed some multiple of that amount such as 1.5 or 2. Such an amendment is proposed.
SPECIFIC AMENDMENTS TO BE PROMULGATED
The following specific amendments to the regulations covered by this notice will be promulgated shortly
1. The definition of "employer" in § 52.247 covers any person who employs "50 or more persons." The reference to 50 or more persons has no regulatory significance, since the employer regulation itself, § 52.250, reads exclusively in terms of the number of employee parking spaces maintained. This reference will be eliminated.
2. Read literally, § 52.250 would apply to any employer with more than 700 (or 70) spaces, even if those spaces were in several different locations. Since it is intended that an incentive program is only required to the extent that the individual employment facility itself has more than the minimum number of spaces in one location, this will be clarified.
3. Section 52.250 should have included a provision allowing any individual employer to submit to the Administrator an alternate mass transit incentive plan which the Administrator could approve upon finding that it would have the same VMT reduction potential as the measures prescribed by the regulation itself. Such a provision will be added.
4. The parking review regulation, as required by court order, applies to all parking facilities for which a construction contract had not been signed as of August 15, 1973. In many instances, builders subject to review under this provision will have made substantial commitments in good faith before August 15, even though no contract was signed. For such situations, it is EPA's intent to consider the difficulty to the builder based on actions taken before August 15 of modifying his design, and to weigh such factors against the Air quality or VMT reduction benefits of such modification in determining whether to approve an application. An amendment to make this explicit will be added.
5. It is the Agency's intent that churches be exempted from surcharge since they are used mainly on weekends when oxidant readings are relatively low. This will be clarified.
6. It is the Agency's intent to exempt from surcharge any parking by emergency vehicles. "Emergency vehicles" will be defined as "any ambulance, police car, rescue truck, piece of fire fighting equipment, or any other vehicle customarily used for the emergency protection of life or property."
7. In many areas of California, it would be impossible to determine a "commercial rate" by the method specified by § 52.250 (a) (2) without looking to parking facilities located many miles away from the employer in question. Such cases, when they arise, indicate that most parking in the vicinity of the employer is in fact free, and that there is accordingly no meaningful commercial rate to apply. This section will be amended to clarify that if no "commercial rate" can be determined by looking only to facilities of 100 or more spaces within two miles of the employment facility in question, the employer may consider the "commercial rate" to be zero and collect only the surcharge.
Public hearings will be held on this proposal in each of the five affected Regions early next year at times and places to be announced later. All public comment received up to thirty days after the close of the last such hearing will be considered in developing revised regulations.
This notice of proposed rulemaking is issued under authority of sections 110 and 301 (a) of the Clean Air Act, as amended, 42 U.S.C. 1857c-5 and 1857g(a).
JOHN QUARLES,
Acting Administrator.
December 6, 1973.
[FR Doc.73-26266 Filed 12-10-73; 8:45am]
Mr. President, I urge the Senate conferees to hold fast to my amendment in their conference with the House. I assure my colleagues that the Subcommittee on Air and Water Pollution will consider the implications of parking regulation, and surcharges at an early date next year.
Mr. MUSKIE. At this point I yield to the distinguished Senator from Arkansas.
Mr. McCLELLAN. Mr. President, I would like to ask the Senator one question. Does the Environmental Protection Agency contend, and does the Senator agree with it if it does, that it has the power or authority to tax automobiles for parking any place?
Mr. MUSKIE. EPA has, of course, asserted that authority. I think its right to do so is debatable.
Mr. McCLELLAN, Well, I–
Mr. MUSKIE. May I finish?
Mr. McCLELLAN. Yes.
Mr. MUSKIE. It is the intention of my subcommittee to hold hearings on that question, and I would be surprised if the tax-writing committees of Congress did not also conduct hearings on that issue.
My objection to this language is that it is an attempt by means of a floor amendment in the House of Representatives to resolve an issue that the appropriate committees of Congress have not had an opportunity to study. With respect to the surcharge by EPA–
Mr. McCLELLAN. Let me interrupt to say that I agree with the Senator on that issue. The appropriate committees should have the jurisdiction, of course. I do not think that it was ever intended for the Environmental Protection Agency to have this taxing power.
Mr. MUSKIE. May I further state, in answer to the Senator from Arkansas, that there is published in the Federal Register, dated Tuesday, December 11, 1973, an order by EPA delaying the use of the surcharge in Los Angeles, and I read this much of the order:
This notice of proposed rulemaking announces deferral of all steps in the implementation of the surcharge regulations for a period of 6 months, or until they can be reconsidered and amended in an orderly manner, whichever period is longer. In addition, a deferral of 1 year in the date for imposing any surcharge, however modified, on free and commercial parking spaces will be promulgated.
So, by action of EPA, we are given the time to consider this issue in an orderly way. May I say to the distinguished Senator from Arkansas, I think we ought to take that time to consider it.
Mr. McCLELLAN. I appreciate the Senator's giving us that information. I just wanted to state for the record personally that I do not believe it was ever the intent of Congress to empower this Environmental Protection Agency to impose a tax on the parking of automobiles anywhere. I could be wrong, but I do not believe that was the intent, and since it is suspended, and the efforts they have been making now are suspended by Executive Order, it does give Congress time to evaluate this problem and determine whether it wishes to empower the agency to impose such a tax. In the meantime, it will not be done.
Mr. MUSKIE. That is right. May I say, in addition, to the Senator that frankly I did not envision the use of this means to control parking, and to control the use of vehicles through the use of such controls. So I think it is an issue. Since it was not discussed or envisioned at the time, I think we do need to evaluate it in hearings. And let me say I appreciate the understanding of the distinguished Senator from Arkansas and the distinguished Senator from Wyoming on this point.
I understand fully, as all of us do, that changing our style of moving about in the cities is not going to be comfortable. Those changes are now imposed not only by the environmental crisis, but also by the energy crisis, so we are going to have to take a long look at them. But I think we ought to do it as a result of the rational hearings process, and I am deeply grateful for the understanding of both my colleagues.
Mr. McGEE. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. McGEE. Mr. President, I have discussed this matter with the ranking minority member of the subcommittee, the Senator from Hawaii (Mr. FONG). We have discussed it together with the chairman of the full committee (Mr. McCLELLAN) and we are prepared to accept the Senator's proposal here on this matter and get on to other matters.
Mr. MUSKIE. I appreciate that cooperation. I am ready to yield the floor.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Maine (Mr. MUSKIE).
The amendment was agreed to.